DAVID A. FORMAN VS. AMY LEVENSON (FM-02-1773-10, BERGEN COUNTY AND STATEWIDE) ( 2020 )

NOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
This opinion shall not "constitute precedent or be binding upon any court." Although i t is posted on the
internet, this opinion is binding only on the parties in the case and its use in other cases is limited. R. 1:36-3.
SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-0238-18T3
DAVID A. FORMAN,
Plaintiff-Respondent,
v.
AMY LEVENSON,
Defendant-Appellant.
Submitted December 9, 2019 – Decided January 22, 2020
Before Judges Fasciale, Rothstadt and Moynihan.
On appeal from the Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1773-10.
Hegge & Confusione, LLC attorneys for appellant
(Steven Resnick, on the briefs).
Laufer, Dalena, Jensen & Bradley, LLC, attorneys for
respondent (Terryann K. Bradley and Peter Gino
Bracuti, on the brief).
PER CURIAM
Defendant appeals from paragraphs one and three of an August 31, 2018
order partially denying reconsideration of a June 12, 2018 order pertaining to
child support; and a September 18, 2018 order, which amended defendant's child
support obligation. 1 Plaintiff sought child support for his eighteen-year-old son
(the son) and, after initially denying that application, the judge awarded plaintiff
support until the son's twenty-third birthday. We reverse that part of the judge's
order on the emancipation ruling, vacate the child support award in plaintiff's
favor, and remand for a plenary hearing consistent with this opinion. We
otherwise affirm.
In May 2018, plaintiff filed a motion for (1) child support; (2) permission
to issue subpoenas relating to settlement monies paid to defendant by her former
employer (the Barclays settlement); (3) enforcement of a provision of the
Marital Settlement Agreement (MSA) relating to an investment account at
Goldman Sachs (GS account); and (4) counsel fees. Plaintiff's May 2018 motion
led to the orders under review.
On appeal, defendant argues the judge (1) deprived her of due process; (2)
1
On today's date, we released our opinion in Forman v. Levenson (Forman I),
No. A-3518-17 (App. Div. Jan. 22, 2020) (slip op. at 1). In that action, defendant
appealed from a March 23, 2018 order confirming an arbitration award.
Defendant primarily argued that the arbitration agreement was invalid, the
Arbitrator exceeded the scope of his powers, and plaintiff engaged in fraud. We
disagreed and upheld the award.
A-0238-18T3
2
erred by denying reconsideration; (3) lacked jurisdiction; (4) erroneously
awarded plaintiff child support without conducting a plenary hearing; (5)
improperly ordered that her support payments be made via income withholding;
(6) mistakenly concluded the son would remain unemancipated; and (7) abused
her discretion by awarding plaintiff counsel fees and finding defendant engaged
in bad faith.
I.
We begin with defendant's argument that the judge denied her due process
by failing to adjourn the return date on plaintiff's motion. We see no abuse of
discretion by denying the adjournment request and conclude there was no due
process violation.
Plaintiff filed his motion on May 4, 2018, with a return date of June 8,
2018. Defendant did not file a timely opposition. On June 4, 2018, defendant
requested consent to adjourn the motion, which plaintiff's counsel refused.
Defendant then wrote the judge two letters. Her first letter—which was
undated—requested an adjournment and advised the judge that she had been ill
and misunderstood the deadline for filing an opposition. In that same letter,
defendant pointed out inaccuracies in plaintiff's case information statement
(CIS), detailed her own finances, and argued the judge lacked jurisdiction
A-0238-18T3
3
because the appeal in Forman I was pending. Her second letter—dated June 8,
2018—alleged that plaintiff's counsel submitted "a knowingly inaccurate CIS,"
and stated that "the issues of child support and respective income are in the
appellate court now," thus depriving the judge of "jurisdiction on non-
enforcement issues."
The judge disbelieved that defendant was confused, found that defendant
represented herself in multiple post-judgment matters and was familiar with the
court system, and determined that defendant acted in bad faith. Moreover,
defendant did not explain what information she would have presented to the
judge had she obtained the adjournment. Although the decision to grant or deny
an adjournment "is peculiarly within the sound discretion of the trial court,"
because one party's right to compliance with the rules could conflict with the
other party's right to an adjudication on the merits, "competing policies are
involved in disputes over procedural issues." Abtrax Pharm., Inc. v. Elkins-
Sinn, Inc., 139 N.J. 499, 513 (1995) (internal quotation marks and citation
omitted). An adjournment request should be granted when denying it would
cause the requesting party manifest wrong or injury. See Allegro v. Afton Vill.
Corp., 9 N.J. 156, 161 (1952). Here, there was no prejudice because the relief
in the order was not adverse to defendant.
A-0238-18T3
4
First, the judge denied plaintiff's motion seeking permission to issue
subpoenas. As for child support, the judge initially denied plaintiff's motion. It
was not until plaintiff's reconsideration motion that plaintiff obtained an order
from the judge awarding child support, and by then, defendant had filed an
opposition. Thus, the child support award—which we are vacating—resulted
from the timely opposed motion for reconsideration, not from the judge's denial
of defendant's adjournment request.
Second, defendant was aware, before plaintiff filed the May 2018 motion,
that the Arbitrator ordered her to pay the awards, and that the judge confirmed
the specific amounts. Defendant had every opportunity to litigate the
substantive merits of those awards during the arbitration proceedings. Indeed,
we upheld the awards in Forman I.
Third, defendant does not appeal or dispute the judge's findings that
plaintiff was entitled to $1098.61 for his share of the GS account, and that
defendant failed to give him his share as required by the MSA. It was not a
manifest wrong or injury for the judge to order defendant to pay a debt that she
failed to dispute. See Allegro, 9 N.J. at 161.
Fourth, the judge's grant of attorneys' fees to plaintiff was grounded in
defendant's bad faith pertaining to failure to pay the arbitration awards—which
A-0238-18T3
5
we will subsequently address—not solely on defendant's bad faith for making
the adjournment request. In other words, the judge saw bad faith, concluding
defendant falsely claimed she "genuinely was unaware of the procedural filing
requirements." The judge however premised the award of attorneys' fees on her
finding that defendant failed to pay the arbitration awards and that defendant
"acted in bad faith in not complying with the provisions of the MSA." The judge
found the MSA allowed for attorneys' fees for any willful violation.
II.
Defendant argues that the judge erred by denying her motion for
reconsideration of the June 12, 2018 order. Essentially, she contends that,
because she submitted a certification attesting to her health issues and her
confusion regarding the return date, the judge should have found that her
representations as to those facts were correct. We see no abuse of discretion by
denying defendant's motion.
On June 12, 2018, the judge denied plaintiff's request for child support
and "subpoena power," but ordered defendant to pay plaintiff (1) $344,972.58
from the Barclays settlement; (2) $15,000 towards plaintiff's attorneys' fees,
ordered by the Arbitrator on February 2, 2018; and (3) $2665 to pay directly to
plaintiff's attorneys, ordered by the Arbitrator on October 25, 2017. The June
A-0238-18T3
6
12, 2018 order provided that the specified amounts would be "reduced to
judgment in favor of the [p]laintiff" if defendant failed to comply. 2 This order
further required defendant to make additional payments, including (1) $1098.61
for his share of the GS account, and (2) $4185 in counsel fees. 3
Defendant unsuccessfully moved for reconsideration of the monetary
amounts referenced in the June 12, 2018 order. Plaintiff filed a motion in aid of
litigant's rights, and cross-moved for reconsideration of the judge's denial of
child support. On August 31, 2018, the judge granted plaintiff's motion for
reconsideration, and without holding a plenary hearing, ordered defendant to
"pay child support . . . in the amount of $367.00 per week with $10.00 in arrears
until paid in full effective May 4, 2018 through Bergen County Probation[.]"
The judge also granted plaintiff's motion to hold defendant in violation of
litigant's rights, and ordered defendant to pay $3345 to plaintiff's attorneys.
"[R]econsideration 'is a matter within the sound discretion of the [c]ourt,
to be exercised in the interest of justice.'" Cummings v. Bahr, 295 N.J. Super.
2The $344,972.58 award was reduced to judgment by an earlier order dated
April 30, 2018, which was entered by another judge.
3
The order stated "[p]laintiff to pay counsel fees for this motion," but the
accompanying statement of reasons and later references make clear that
defendant, rather than plaintiff, was to pay the fees.
A-0238-18T3
7
374, 384 (App. Div. 1996) (quoting D'Atria v. D'Atria, 242 N.J. Super. 392, 401
(Ch. Div. 1990)). Reconsideration should only be used "'for those cases which
fall into that narrow corridor in which either 1) the [c]ourt has expressed its
decision based upon a palpably incorrect or irrational basis, or 2) it is obvious
that the [c]ourt either did not consider, or failed to appreciate the significance
of probative, competent evidence[.]'" Ibid. (quoting D'Atria, 242 N.J. Super. at
401-02).
A party should not seek reconsideration based only on dissatisfaction with
the judge's decision, and "[t]he standards for reconsideration are substantially
harder to meet than are those for a reversal of a judgment on appeal." Regent
Care Ctr., Inc. v. Hackensack City, 20 N.J. Tax 181, 184-85 (2001). The party
seeking reconsideration must show that the judge "acted in an arbitrary,
capricious, or unreasonable manner." D'Atria, 242 N.J. Super. at 401 (remarking
that "[a]lthough it is an overstatement to say that a decision is not arbitrary,
capricious, or unreasonable whenever a [c]ourt can review the reasons stated for
the decision without a loud guffaw or involuntary gasp, it is not much of an
overstatement").
The judge acted within her discretion in denying defendant's adjournment
request, even assuming the truth of defendant's representations regarding her
A-0238-18T3
8
state of health and confusion. The fact that defendant more formally certified
to the same facts that she previously presented in her two informal letters to the
judge did not establish an abuse of discretion. Defendant's poor health and
procedural misunderstanding did not entitle her to an adjournment, regardless
of how those facts were presented. Thus, for the same reasons the judge did not
abuse her discretion in denying the adjournment request in the first instance, she
did not abuse her discretion in refusing to reconsider that determination.
III.
Defendant argues that the trial court lacked jurisdiction to address
plaintiff's request for child support because defendant's appeal from the
arbitration award was pending (Forman I). Defendant explained to the judge
that "[m]uch of [p]laintiff's requested relief" was the subject of the pending
appeal, but she did not specify which relief. The judge did not specifically
address this issue because it was not adequately raised. Defendant generally
argues that the judge lacked jurisdiction to make a substantive ruling on child
support because that issue was before the Arbitrator.
The Arbitrator considered defendant's application for child support, filed
in January 2014 and decided in February 2018, and the final order ending all
issues in the arbitration was entered on April 2, 2018. Plaintiff did not seek
A-0238-18T3
9
child support during arbitration, but in May 2018, he sought child support from
the judge, retroactive to September 2017. The judge awarded plaintiff child
support, but declined giving retroactive effect to the award, holding that
defendant's obligation would begin in May 2018⸺when plaintiff filed his
motion in the trial court.
The arbitration only dealt with defendant’s request for child support, not
plaintiff's. But because the parties agreed in December 2017 to submit "[a]ll
issues that could have been raised and adjudicated by the [c]ourt in the New
Jersey Superior Court, Family Part – both interim and final" to the Arbitrator,
arguably any request for child support during the arbitration period, including
plaintiff's, should have been submitted to the Arbitrator. Once the arbitration
was fully concluded in April 2018, however, there was no reason plaintiff could
not apply to the judge for child support based on changed circumstances. See
Lepis v. Lepis, 83 N.J. 139, 145 (1980) (noting that "[t]he equitable power of
the courts to modify alimony and support orders at any time is specifically
recognized by N.J.S.A. 2A:34-23"); see also Chalmers v. Chalmers, 65 N.J. 186,
192 (1974) (stating that child support is "always subject to review on a showing
of changed circumstances"). Thus, notwithstanding the appeal in Forman I, the
judge had jurisdiction to consider plaintiff's application based on changed
A-0238-18T3
10
circumstances, which takes us to the main reason we conclude remand is
necessary.
IV.
Defendant argues that the judge erred in awarding plaintiff child support
based on changed circumstances without holding a plenary hearing to consider
"new evidence and updated financial information." On this point, we agree with
defendant. We therefore vacate the child support award and remand for a
hearing.
"Because of the family courts' special jurisdiction and expertise in family
matters, appellate courts should accord deference to family court factfinding."
Cesare v. Cesare, 154 N.J. 394, 413 (1998). Accordingly, "[t]he general rule is
that findings by a trial [judge] are binding on appeal when supported by
adequate, substantial, credible evidence." Gnall v. Gnall, 222 N.J. 414, 428
(2015). However, a reviewing court owes no deference to a trial judge's
interpretation of the law, which it reviews de novo. Manalapan Realty, L.P. v.
Twp. Comm. of Manalapan, 140 N.J. 366, 378 (1995).
A trial judge's decision to grant or deny an application to modify child
support is reviewed for an abuse of discretion. Larbig v. Larbig, 384 N.J. Super.
17, 21 (App. Div. 2006). "Of course, the exercise of this discretion is not
A-0238-18T3
11
limitless" and remains guided by the law and principles of equity. Steneken v.
Steneken, 367 N.J. Super. 427, 434 (App. Div. 2004). A judge abuses his or her
discretion where the award is "manifestly unreasonable, arbitrary, or clearly
contrary to reason or to other evidence, or the result of whim or caprice." Jacoby
v. Jacoby, 427 N.J. Super. 109, 116-17 (App. Div. 2012) (internal quotation
marks and citation omitted).
In determining whether to modify child support, the trial judge should
bear in mind that "New Jersey has long espoused a policy favoring the use of
consensual agreements to resolve marital controversies." Konzelman v.
Konzelman, 158 N.J. 185, 193 (1999). As contracts, MSAs should be enforced
according to the original intent of the parties. Pacifico v. Pacifico, 190 N.J. 258,
266 (2007).
Absent "compelling reasons to depart from the clear, unambiguous, and
mutually understood terms of" the MSA, a judge is generally bound to enforce
its terms. Quinn v. Quinn, 225 N.J. 34, 55 (2016). Our Supreme Court "has
observed that it is 'shortsighted and unwise for courts to reject out of hand
consensual solutions to vexatious personal matrimonial problems that have been
advanced by the parties themselves.'" Id. at 44 (quoting Konzelman, 158 N.J.
at 193). Consistent with New Jersey's "strong public policy favoring stability
A-0238-18T3
12
of arrangements in matrimonial matters," courts will not "unnecessarily or
lightly disturb[]" MSAs that are fair and equitable. Ibid. (internal quotation
marks and citations omitted).
Notwithstanding the policy in favor of enforcing MSAs, courts have the
ability to modify marital agreements when changed circumstances occur due to
"the nature of some post-judgment issues, such as custody of children and
financial support for the family[.]" Id. at 46; see also Conforti v. Guliadis, 128
N.J. 318, 323 (1992) (noting that MSAs are unlike other contracts in that they
"must serve the strong public and statutory purpose of ensuring fairness and
equity in the dissolution of marriages"). "While courts are predisposed to
uphold [MSAs], this enforceability is subject to judicial supervisory control."
Patetta v. Patetta, 358 N.J. Super. 90, 95 (App. Div. 2003) (citation omitted);
see also N.J.S.A. 2A:34-23 (stating that child support orders "may be revised
and altered by the [judge] from time to time as circumstances may require").
In considering the equity of agreed-upon child support, courts must bear
in mind that the right of support belongs to the child, not the cust odial parent.
Pascale v. Pascale, 140 N.J. 583, 591 (1995); Ordukaya v. Brown, 357 N.J.
Super. 231, 241 (App. Div. 2003) (citations omitted); see also Blum v. Ader,
279 N.J. Super. 1, 4 (App. Div. 1994) (holding that the parties to a contract
A-0238-18T3
13
"cannot bargain away" their child's right to support); accord Patetta, 358 N.J.
Super. at 95 (noting that where the rights of children are concerned, agreements
are subject to "careful judicial scrutiny").
The party seeking to modify a support obligation included in an MSA
bears the burden of showing changed circumstances. Lepis, 83 N.J. at 146-48.
"Changed circumstances are not confined to events unknown or unanticipated at
the time of the agreement[,]" but courts must take care "not to upset the
reasonable expectations of the parties." J.B. v. W.B., 215 N.J. 305, 327 (2013).
Moreover, when one or both of the parties have contractually "agreed to
undertakings advantageous to a child beyond that minimally required," the
public policy in favor of enforcing such agreements "usually counsels against
modification." Ibid. (citations omitted); see also Lissner v. Marburger, 394 N.J.
Super. 393, 403 (Ch. Div. 2007) (noting that "if a party agrees to support a child
beyond that otherwise required, a court must favor the agreement, in the interests
of the child"); cf. Avelino-Catabran v. Catabran, 445 N.J. Super. 574, 584 (App.
Div. 2016) (holding child support modification warranted because the parties'
incomes had "changed dramatically" since they settled their divorce disputes).
Based on plaintiff's certification regarding the change in custody for the
son and the Arbitrator's findings regarding income, the judge (1) relieved the
A-0238-18T3
14
parties of their obligation under the MSA to each be responsible for child-care
costs during each party's parenting time, and (2) set a specific sum for child
support. Although the party's respective parenting time of the son admittedly
changed to some degree, the nature and extent of that change was in dispute and
not fully developed. The judge should have considered whether the extent of
the changed circumstances justified a departure from the MSA's terms.
Assuming that changed circumstances warranted some child support award, we
conclude there was inadequate consideration given to the appropriate amount
and to whether equitable principles warranted a deviation from the child support
guidelines.
Here, in the August 2018 order awarding child support to plaintiff, the
judge stated that "[s]ince September 2017, [p]laintiff has had physical custody
of the [son] . . . . Defendant acknowledged said change in custody during the
arbitration." This finding is not adequately supported by the record. Plaintiff
certified that the son lived with him "on a full-time basis" and visited defendant
in Long Island "primarily on alternate weekends, but usually only overnights on
Fridays." The judge accepted this fact, awarding plaintiff child support based
on the son spending only twenty-six overnights per year with defendant. In
addition, plaintiff asserted, and the judge accepted, that defendant admitted
A-0238-18T3
15
during the arbitration that plaintiff had physical custody of the son.
During the arbitration, however, defendant only admitted that the son was
staying with her part time, not that the son now spent virtually all of his time in
plaintiff's custody. Defendant specifically stated that the son spent "[t]hree out
of four weekends" per month in Long Island with her as of September 2017.
Also, the undisputed reason for the change was the distance of defendant's
residence from the son's school, which would only apply during weeks when the
school was in session.
Moreover, in opposing plaintiff's motion to reconsider the denial of child
support, defendant certified that: (1) the "window of time" when the son
"switched residences" was only approximately nine months, meaning that the
son's living arrangements changed again in June 2018; (2) during the time when
he "switched residences," the son spent "at least" one or two nights per week
with a friend, rather than at either parent's home; and (3) defendant paid many
of the son's living expenses even when he was not staying with her. The judge
accepted plaintiff's assertions without resolving the conflicting facts offered by
defendant and without considering that plaintiff failed to offer evidence as to
custody arrangements during school breaks and summer vacations. There were
no findings as to the duration and extent of the change in the son's custody, his
A-0238-18T3
16
summer living arrangements, or the payment of his living expenses when he
stayed overnight with friends.
There was no consideration of the MSA's terms nor whether the alleged
change in custody was sufficient to justify deviating from the parties' agreed-
upon child support arrangement. Plaintiff and the judge both cited a portion of
the April 2015 consent order for the proposition that the parties agreed support
would change if living arrangements changed. However, in context, the cited
portion of the April 2015 consent order does not support this.
The parties agreed in the MSA that neither would pay child support. They
then agreed in the April 2015 consent order that if the Arbitrator awarded child
support to defendant and, later, "the overnight arrangement as utilized in any
child support calculation change substantially[,]" then the parties would "consult
on recalculation." Since the Arbitrator made no award of child support, there
was no "child support calculation" that the parties were obliged to discuss and,
if necessary, recalculate. Thus, plaintiff's assertion that the parties affirmatively
agreed that any change in custody would trigger a right to child support is not
supported by the record.
Even assuming that plaintiff carried his burden of establishing that
changed circumstances warranted a deviation from the MSA and an award of
A-0238-18T3
17
child support, the judge erred in simply accepting the sum proposed by plaintiff
without analyzing the circumstances, the needs of the child, and equitable
considerations. The judge accepted the child support figure proposed by
plaintiff of $367 per week without discussion. Plaintiff certified that he arrived
at this amount using the child support guidelines. See Schedule of Child Support
Awards, Pressler & Verniero, Current N.J. Court Rules, Appendix IX-F to R.
5:6A, www.gannlaw.com (2019) (Appendix IX-F Schedule). Plaintiff stated
that he was making the "concession" that he was "willing to accept that . . .
defendant pay child support based upon the . . . [g]uidelines alone[,]" even
though the parties' income exceeded the amount covered by them. The judge
was obliged to conduct an independent analysis of the appropriate award,
notwithstanding plaintiff's purported "concession."
Rule 5:6A provides that "when an application to establish or modify child
support is considered by the court," the child support guidelines "shall be
applied" but "may be modified or disregarded by the court only where good
cause is shown." Good cause exists, in part, where (1) there are "other relevant
factors which may make the guidelines inapplicable or subject to modification,"
or (2) an "injustice would result from the application of the guidelines." R.
5:6A.
A-0238-18T3
18
The guidelines apply to the calculation of income when the parties have a
combined gross taxable income of a specified amount or less. Connell v.
Connell, 313 N.J. Super. 426, 431 (App. Div. 1998); Appendix IX-F Schedule.
Applying the Appendix IX-F Schedule, the specified amount is currently $3600
per week. When, as in this case, the parties' combined income exceeds $3600
per week, the trial court has to apply the guidelines up to the maximum; when
making an additional award, the amount should be determined by considering
the factors enumerated in N.J.S.A. 2A:34-23(a). Pascale, 140 N.J. at 595;
Connell, 313 N.J. Super. at 431. Courts should not simply extrapolate an
additional amount from the guideline because that method undermines the
statistical basis of the guidelines. See Pascale, 140 N.J. at 593; Walton v. Visgil,
248 N.J. Super. 642, 649 (App. Div. 1991); see also Considerations in the Use
of Child Support Guidelines, Pressler & Verniero, Current N.J. Court Rules,
Appendix IX-A(20)(b) to R. 5:6A, www.gannlaw.com (2019).
In Rubin v. Rubin, this court cautioned the trial judge against relying on
incomplete income information and simply imposing the amount sought by the
party requesting support. 188 N.J. Super. 155, 160 (App. Div. 1982). This court
explained:
We are dealing here with the support of a child. It may
well be that the income tax returns would have
A-0238-18T3
19
indicated the propriety of [the] defendant being ordered
to pay more than the $100 a week child support
requested by the wife based on her uninformed
speculation as to what the defendant's income was.
[Ibid.]
This court noted that "the child's interests may well have been adversely
prejudiced by the precipitous action of the court" in refusing to allow and
consider all relevant evidence. Ibid.Here, the judge erred in relying on the numbers provided by plaintiff and
his "concession" that he would take less than the amount to which he was legally
entitled. If changed circumstances warranted an award, it was the son, not
plaintiff, who was entitled to support. The judge had an affirmative duty to
obtain relevant financial information from both parties and, upon finding facts
sufficient to justify making an award, to determine an equitable sum above the
child support guidelines' maximum.
In addition, the judge's reliance on the Arbitrator's conclusion regarding
defendant's income was misplaced. The Arbitrator noted defendant's
approximate income of $200,000 for purposes of deciding whether she carried
her evidentiary burden to establish changed circumstances sufficient to warrant
an award of child support from plaintiff to her. The purpose of the Arbitrator's
approximation was to determine that "[d]efendant had higher earnings than
A-0238-18T3
20
[p]laintiff since the filing of [defendant's] motion[,]" thus rendering an award of
support to her inappropriate. The $200,000 amount referenced by the Arbitrator
was not intended to be a finding of defendant's specific income upon which to
base a particular calculation. The judge should have sought and considered
updated and accurate information regarding defendant's income rather than
solely relying on the Arbitrator's estimate.
We therefore vacate the child support award and remand for a plenary
hearing to allow the parties to present all relevant evidence regarding changed
circumstances, income, and expenses. We leave the details of the plenary
hearing to the judge's discretion.
V.
Defendant argues that the judge erred in ordering her child support
payments be made via income withholding without first requiring plaintiff to
file an application requesting that relief and giving defendant an opportunity to
respond. We see no error in that regard but understand that continued child
support payments will be dependent on the findings of fact and conclusions of
law on remand.
The applicable legal standards are set forth in N.J.S.A. 2A:17-56.8 and
Rule 5:7-4A(a). The statute provides, in pertinent part:
A-0238-18T3
21
A support provision contained in an order or judgment
issued by the court shall be paid by income withholding
unless the order or judgment specifically provides for
an alternative payment arrangement to which the
parties agree in writing or the obligor or obligee
demonstrates and the court finds good cause for
establishing an alternative arrangement.
[N.J.S.A. 2A:17-56.8.]
Similarly, Rule 5:7-4A(a) states: "[a]ll orders that include child support shall
be paid through immediate income withholding from the obligor's current and
future income, unless the parties agree in writing to an alternative arrangement,
or either party shows and the court finds good cause for an alternative
arrangement." Thus, by ordering income withholding, the judge committed no
error, but was simply implementing the statutory and rule requirements.
Nevertheless, defendant's contention that she was unaware income
withholding could be ordered is concerning. Both the statute and the Rule
placed the obligation on plaintiff to include written notice that income
withholding would result from a child support award to defendant in his motion
for child support and his motion for reconsideration. Similarly, the judge's order
should have included this notice. N.J.S.A. 2A:17-56.8 establishes:
Every complaint, notice or pleading for the entry or
modification of a support order and every court order
which includes child support shall include a written
notice to the obligor stating that the child support
A-0238-18T3
22
provision of the order shall, and the health care
coverage provision may, as appropriate, be enforced by
an income withholding upon the current or future
income due from the obligor's employer or successor
employers and upon the unemployment compensation
benefits due the obligor and against debts, income, trust
funds, profits or income from any other source due the
obligor except as provided in section 3 of [L.] 1981, [c.]
417 . . . . The written notice shall also state that the
driver's license and professional or occupational
licenses, or recreational or sporting license in
accordance with [L.] 1996, [c.] 7 . . . held or applied for
by the obligor may be denied, suspended or revoked if:
the child support arrearage is equal to or exceeds the
amount of child support payable for six months; the
obligor fails to provide health care coverage for the
children as ordered by the court for six months; or the
obligor fails to respond to a subpoena relating to a
paternity or child support proceeding; or a warrant for
the obligor's arrest has been issued by the court due to
failure to pay child support as ordered, failure to appear
at a hearing to establish paternity or child support, or
failure to appear at a hearing to enforce a child support
order and said warrant remains outstanding. The
written notice shall also state that the amount of a child
support order and the provisions for health care
coverage may be reviewed and updated when there has
been a change in circumstances or in accordance with
section 5 of [L.] 1990, [c.] 92[.]
Correspondingly, Rule 5:7-4A(a)(3) provides:
Every complaint, notice or pleading for the entry or
modification of a child support order shall include the
following written notice: [i]n accordance with N.J.S.A.
2A:17-56.7a[], the child support provisions of a court
order are subject to income withholding on the effective
date of the order unless the parties agree, in writing, to
A-0238-18T3
23
an alternative arrangement or either party shows and
the court finds good cause to establish an alternative
arrangement. The income withholding is effective
upon all types of income including wages from current
and future employment.
Plaintiff did not provide defendant with the required written notice when he
applied to the judge for child support, and the judge's order does not contain this
notice.
The lack of prior notice alone, however, should not invalidate a child
support award. That is particularly true where, as here, no prejudice resulted.
Although defendant contends that September 18, 2018 order was sent to her
employer, "causing violations of her firm protocol," nothing in the record
supports this. The income withholding order indicates that the identity of
defendant's employer was unknown, and defendant submits no proof as to her
employer's identity or protocols. Also, defendant offers nothing to suggest that
if she had prior notice and an opportunity to object, she could have shown good
cause to exempt her case from the general income withholding requirement.
VI.
Defendant argues that the judge erred in ordering her to pay child support
for the son until his twenty-third birthday. We conclude, especially because we
have vacated the child support award and have remanded for a hearing, that the
A-0238-18T3
24
record must be more fully developed on the question of whether the son was or
would remain unemancipated.
"One of the fundamental concepts in American society is that parents are
expected to support their children until they are emancipated, regardless of
whether the children live with one, both, or neither parent." Burns v. Edwards,
367 N.J. Super. 29, 39 (App. Div. 2004). "Emancipation⸻the conclusion of the
fundamental dependent relationship between parent and child⸺is not a self-
executing principle[]" and does not automatically occur when a child reaches a
certain age. Dolce v. Dolce, 383 N.J. Super. 11, 17 (App. Div. 2006); see also
Newburgh v. Arrigo, 88 N.J. 529, 543 (1982) (noting that "emancipation need
not occur at any particular age"). Nevertheless, "a rebuttable presumption
against emancipation exists prior to attaining the age of eighteen," and the fact
that a child has reached that age establishes prima facie proof of emancipation.
Dolce, 383 N.J. Super. at 17; see also N.J.S.A. 9:17B-3 (providing that, with
specified exceptions, "every person [eighteen] or more years of age shall in all
other matters and for all other purposes be deemed to be an adult and,
notwithstanding any other provision of law to the contrary, shall have the same
legal capacity to act and the same powers and obligations as a person [twenty-
one] or more years of age").
A-0238-18T3
25
"The issue of '[w]hether a child is emancipated at age eighteen, with the
correlative termination of the right to parental support,' is fact-sensitive." Dolce,
383 N.J. Super. at 17 (alteration in original) (quoting Newburgh, 88 N.J. at 543).
"[T]he essential inquiry is whether the child has moved 'beyond the sphere of
influence and responsibility exercised by a parent and obtains an independent
status of his or her own.'" Filippone v. Lee, 304 N.J. Super. 301, 308 (App. Div.
1997) (quoting Bishop v. Bishop, 287 N.J. Super. 593, 598 (Ch. Div. 1995)).
"This determination involves a critical evaluation of the prevailing
circumstances including the child's need, interests, and independent resources,
the family's reasonable expectations, and the parties' financial ability, among
other things." Dolce, 383 N.J. Super. at 18.
Once the age of majority is reached and the presumption of emancipation
arises, "the burden of proof to rebut the statutory presumption of emancipation
shifts to the party or child seeking to continue the support obligation." Ricci v.
Ricci, 448 N.J. Super. 546, 572 (App. Div. 2017). In this regard, "while parents
are not generally required to support a child over eighteen, his or her enrollment
in a full-time educational program has been held to require continued support."
Patetta, 358 N.J. Super. at 94; see also Newburgh, 88 N.J. at 543 (noting that "in
appropriate circumstances, the privilege of parenthood carries with it the duty
A-0238-18T3
26
to assure a necessary education for children"). In keeping with this duty,
"college costs are recognized as a form of support for unemancipated children."
Ricci, 448 N.J. Super. at 572; see also N.J.S.A. 2A:17-56.67(a) (providing that
"a child support obligation shall terminate by operation of law without order by
the court when a child reaches [nineteen] years of age unless" certain criteria,
including continued enrollment in specified educational institutions, are met).
The son had just turned nineteen when the judge ordered child support.
The August 2018 order and statement of reasons said nothing about the son's
emancipation or educational status. Indeed, the judge referenced "the parties'
minor child, [the son]," suggesting that she was unaware that the son had reached
the age of majority before plaintiff moved for support. The September 2018
order stated that child support would continue until the son's twenty-third
birthday "due to . . . his educational status effective" as of the time the May 2018
motion was filed.
However, the certifications plaintiff filed with the May 2018 motion and
his motion for reconsideration did not address the son's educational status at the
time, and there was no evidence as to when and under what circumstances he
might attend college. The only evidence regarding his education was
defendant's statement in the May 10, 2017 arbitration transcript that the son was
A-0238-18T3
27
then in the eleventh grade. Presumably, by the time plaintiff filed his motion
the following year, the son was preparing to graduate from high school.
Plaintiff notes that N.J.S.A. 2A:17-56.67(c) provides that "[a] parent
responsible for paying child support who disagrees with the court's decision to
continue child support beyond the date the child reaches [nineteen] years of age"
is free to move for relief from that obligation at a later date. The statute,
however, also provides that the "custodial parent" must "establish sufficient
proof" of one of the enumerated bases to continue child support after the age of
nineteen. Ibid. Here, the record must be more fully developed on this point.
Plaintiff argues that the support award's duration is appropriate because
"defendant does not contest the [son's] educational status." However, this puts
the onus on defendant to come forward with proofs that her adult-child does not
need continuing support for college, which impermissibly shifts the applicable
burden. Moreover, regardless of whether defendant offered evidence, the judge
was required to do a fact-specific analysis "including the child's need, interests,
and independent resources, the family's reasonable expectations, and the parties'
financial ability, among other things[,]" to determine the son's emancipation and
educational status. Dolce, 383 N.J. Super. at 18. This analysis was particularly
necessary here because the sole reason the judge ordered support was the
A-0238-18T3
28
purported change in the son's custody resulting from the son's continued
attendance at a New York City high school. In the absence of any evidence
regarding the son's college plans, there was no basis for the judge to conclude
that the son would spend more of his time in his father's residence after leaving
high school.
As to college costs, we see no evidence from which the judge could have
concluded that plaintiff needed the support order. Paragraph 5.5 of the MSA
provides for the parties to essentially split any post-secondary education
expenses, which establishes the parties had affirmatively agreed on how to
finance college for the son. There was no evidence to justify relieving either
party of this obligation under the MSA.
In sum, even assuming that plaintiff established changed circumstances
sufficient to justify deviating from the parties' agreement regarding child
support, the judge erred in ordering the continuation of that support until the
son's twenty-third birthday, absent proof regarding his emancipation and
educational status.
We therefore vacate the child support award and remand for a plenary
hearing, allowing the parties to present all relevant evidence on these points to
the judge.
A-0238-18T3
29
VII.
The judge did not abuse her discretion by awarding attorneys' fees to
plaintiff on his motion leading to the financial awards in the June 2018 order.
A judge may, in his or her discretion, order a party to pay the successful
opposing party's attorneys' fees in family actions. R. 4:42-9(a)(1); R. 5:3-5(c).
When doing so, the judge should consider:
(1) the financial circumstances of the parties; (2) the
ability of the parties to pay their own fees or to
contribute to the fees of the other party; (3) the
reasonableness and good faith of the positions
advanced by the parties both during and prior to trial;
(4) the extent of the fees incurred by both parties; (5)
any fees previously awarded; (6) the amount of fees
previously paid to counsel by each party; (7) the results
obtained; (8) the degree to which fees were incurred to
enforce existing orders or to compel discovery; and (9)
any other factor bearing on the fairness of an award.
[R. 5:3-5(c); see also Mani v. Mani, 183 N.J. 70, 94-95
(2005); N.J.S.A. 2A:34-23 (providing that the judge
"shall consider the factors set forth in the court rule on
counsel fees, the financial circumstances of the parties,
and the good or bad faith of either party").]
Fee awards should be disturbed "only on the rarest occasions, and then only
because of a clear abuse of discretion." Rendine v. Pantzer, 141 N.J. 292, 317
(1995). A trial judge's failure to consider the appropriate factors, make the
required findings, and state its conclusions of law, constitutes a clear abuse of
A-0238-18T3
30
discretion. Saffos v. Avaya Inc., 419 N.J. Super. 244, 270-71 (App. Div. 2011).
Ordinarily, the purpose of a counsel fee award in a matrimonial action is to
equalize the relative financial resources of the parties. J.E.V. v. K.V., 426 N.J.
Super. 475, 493 (App. Div. 2012).
The judge analyzed the relevant factors. She awarded counsel fees to
plaintiff based on her findings that defendant acted in bad faith and that she had
the ability to pay because defendant earned "significantly more." Thus, the
judge's finding that defendant had the ability to pay and earned "significantly
more" than plaintiff, coupled with her finding of bad faith, provided a sufficient
basis to exercise her discretion to award attorneys' fees.
Bad faith in the context of a fee application "is not simply bad judgment
or negligence[;] rather it implies the conscious doing of a wrong because of
dishonest purpose or moral obliquity." Borzillo v. Borzillo, 259 N.J. Super. 274,
292 (Ch. Div. 1992) (internal quotation marks and citation omitted). "'Bad faith'
has also been defined as an intent to mislead or deceive another, or a neglect or
refusal to fulfill some duty or contractual obligation not prompted by some
honest mistake as to one's rights or duties, but by some interested or sinister
motive." Ibid. (citing Black's Law Dictionary 127 (5th ed. 1979)).
Here, the judge disbelieved defendant's explanation for failing to file a
A-0238-18T3
31
timely reply to the May 2018 motion. Additionally, the judge found that
defendant failed to pay (1) the amounts ordered in three arbitration orders that
were confirmed by the trial judge, and (2) plaintiff his share of the GS
investment account. Moreover, defendant agreed to indemnify plaintiff for his
attorneys' fees should she "willfully fail to abide by any terms" of the MSA. The
judge found that defendant's "willful violation of the MSA resulted in
[p]laintiff's counsel fees being significantly protracted in this matter. "
Defendant does not dispute that the MSA obliged her to pay plaintiff his share
of the GS account and that she willfully failed to do so.
To the extent that we have not specifically addressed any of defendant's
remaining arguments, we conclude they lack sufficient merit to warrant
discussion in a written opinion. R. 2:11-3(e)(1)(E).
We vacate the child support award and remand for a plenary hearing
consistent with this opinion. Along with all other required findings and
conclusions of law, the judge should determine whether child support is
warranted, and if so, the amount of support and whether it should continue until
any specific age. We otherwise affirm.
A-0238-18T3
32